Contents

Equality Impact Assessment - Results

Title of policy

Civil Litigation (Expenses and Group Proceedings)
(Scotland) Bill

Summary of aims and desired outcomes of
policy

The principal aim of the legislation is to create a more
accessible, affordable and equitable civil justice system for
Scotland by making the costs of court action more predictable,
increasing the funding options for pursuers of civil actions
and introducing a greater level of equality to the funding
relationship between claimants and defenders in personal injury
actions.

Directorate: Division: Team

Justice: Civil Law & Legal System Division: Courts
Team

Executive Summary

An Equality Impact Assessment (
EQIA) is to
aid the Scottish Government in discharging its Public Sector
Equality Duty under section 149 of the Equality Act 2010. The
Scottish Government is required to assess the impact of proposed
legislation against the needs in the public sector equality duty -
to eliminate unlawful discrimination, to advance equality of
opportunity and to foster good relations.

The Civil Litigation (Expenses and Group Proceedings) (Scotland)
Bill will provide the legislation needed to implement many of the
recommendations of Sheriff Principal Taylor's 2013 Review of
Expenses and Funding of Civil Litigation in Scotland
[1]. In addition, it will make provisions relating to
recommendations by Lord Gill in his 2009 Report of the Scottish
Civil Courts Review
[2] about two topics which have not yet been implemented.

Equality issues were considered during the policy development
process and none of the final proposals were considered to give
rise to the possibility of those affected being treated less
favourably due to any of the protected characteristics.

As the proposals in the Bill are, in the main, permissive and
intended to apply equally to all affected and as responses to a
consultation on the proposals did not identify any detrimental
effect on the basis of the protected characteristics, it was
considered that a relatively limited Equality Impact Assessment (
EQIA) would
be appropriate.

The focus of consideration was on determining whether there may
be any inadvertent effects on different groups, by examining
sectors of the population likely to be affected by the Bill -
primarily those contemplating or instigating a civil court action,
defenders in court actions and pursuer and defender legal
professionals.

The
EQIA took
into consideration all the available evidence and confirmed that
the proposals in the Bill are unlikely to have any significant
differential effect on the basis of the protected characteristics.
Furthermore, consultation responses indicate that the Bill's
provisions may have a positive impact on people with a
disability.

No changes to the policy were considered necessary following the
EQIA.
However, the Scottish Government will continue to work with key
stakeholders to ensure full account is taken of equality
issues.

Background

Scottish Civil Courts Review

The Rt Hon Lord Gill's Report of the Scottish Civil Courts
Review ("the
SCCR"),
published in September 2009, sets out the most comprehensive
programme of reform of the civil courts in generations. The remit
of the
SCCR was to
review the provision of civil justice by the courts in Scotland,
including their structure, jurisdiction, procedures and working
methods, having particular regard to:

the cost of litigation to parties and to the public
purse;

the role of mediation and other methods of dispute resolution
in relation to court process;

the development of modern methods of communication and case
management; and

the issue of specialisation of courts or procedures,
including the relationship between the civil and criminal
courts.

The Scottish Government accepted the vision provided by Lord
Gill and broadly accepted the detail of his recommendations. A
range of work was taken forward to implement the recommendations.
During the course of Lord Gill's deliberations, Lord Justice
Jackson was appointed to undertake a fundamental review of the
rules and principles governing the costs of civil litigation in
England and Wales. Lord Gill took the view that recommendations
from this review in England and Wales could have considerable
implications for the conduct of litigation in Scotland.
Accordingly, it was decided that the
SCCR would
not address the issue of litigation expenses in Scotland in detail
and Lord Gill recommended that a separate review should be
undertaken.

Review of Expenses and Funding of Civil Litigation

On 4 March 2011, the Minister for Community Safety, Fergus Ewing
MSP,
asked Sheriff Principal James A. Taylor to chair a Review of the
Expenses and Funding of Civil Litigation in Scotland. The remit of
the review was as follows.

To review the costs and funding of civil litigation in the
Court of Session and sheriff court in the context of the
recommendations of the Scottish Civil Courts Review, and the
response of the Scottish Government to that review. In
undertaking the review, Sheriff Principal Taylor was:

to consult widely, gather evidence, compare the expenses
regime in Scotland with those of other jurisdictions and have
regard to research and previous enquiries into costs and funding,
including the Civil Litigation Costs Review of Lord Justice
Jackson;

to consider issues in relation to the affordability of
litigation; the recoverability and assessment of expenses; and
different models of funding litigation (including contingency,
speculative and conditional fees, before the event ("
BTE") and after the
event ("
ATE") insurance,
referral fees and claims management);

to consider the extent to which alternatives to public
funding may secure appropriate access to justice, and pay
particular attention to the potential impact of any
recommendations on publicly funded legal assistance;

to have regard to the principles of civil justice outlined in
Chapter 1, paragraph 5 of the
SCCR;

to consider other factors and reasons why parties may not
litigate in Scotland; and

to report with recommendations to the Scottish Ministers,
together with supporting evidence within 18 months of the work
commencing.

The resulting report by Sheriff Principal Taylor is therefore
interlinked with the
SCCR and
can be viewed as a continuation of that work; indeed the review
was carried out on the assumption that Lord Gill's
recommendations, which form the basis of the 2014 Act, would be
in place. These structural changes create the framework to enable
the recommendations from Sheriff Principal Taylor's review to be
implemented.

Sheriff Principal Taylor presented his Review of Expenses and
Funding of Civil Litigation in Scotland report to the then Cabinet
Secretary for Justice, Kenny MacAskill
MSP,
in September 2013. The report contained 85 recommendations aimed at
delivering greater predictability and certainty in relation to the
cost of litigation, thereby increasing access to justice.
Approximately half the recommendations do not require primary
legislation and will be mostly implemented by rules of court
approved by the Scottish Civil Justice Council. The recommendations
regarding sanction for counsel in personal injury actions were
provided for in the 2014 Act. The other recommendations require
primary legislation and most will be implemented through this Bill.
The main exceptions are regulation of the claims management
industry and referral fees which will be part of a review of the
regulation of legal services.

In the response to the report, the Scottish Government committed
to drawing together a range of partners and activity across the
justice system to take forward the proposals. There was also a
commitment to introduce primary legislation to implement, in
particular, the recommendations on speculative fee agreements,
damages based agreements (
DBAs) and
qualified one way costs shifting (
QOCS)
as a package and to consider the
SCCR
recommendations relating to group procedures and auditors of court
alongside Sheriff Principal Taylor's recommendations.

Specifically, the Bill includes provisions:

to introduce sliding caps for success fee agreements
(speculative fee agreements and
DBAs) in
personal injury and other civil actions;

to allow
DBAs to be
enforceable by solicitors in Scotland;

to introduce
QOCS
for personal injury cases and appeals, including clinical
negligence and specify the circumstances when the benefit of
QOCS
would not apply;

to allow for new court rules in respect of third party and
pro bono funded litigation and for legal representatives to bear
the cost where their conduct in a civil action has caused
needless cost;

to enable the Auditor of the Court of Session and sheriff
court auditors to become salaried posts within the Scottish
Courts and Tribunal Service; and

to allow for the introduction of a group procedure in
Scotland.

Scope of the
EQIA

A framing exercise, which is recommended but not required, was
not carried out owing to the nature and extent of the proposals and
the limited evidence in relation to protected groups and the civil
justice system. There has been ongoing consultation with key
stakeholder groups and justice partners during the policy
development process. Discussions with stakeholders, policy
colleagues in Scottish Government and justice partners covered the
potential impact of the Government's policy proposals. Assessments
for Justice Bills, along with feedback on equality matters received
from stakeholders at various meetings and through written responses
submitted to the consultation, were used to decide if a formal
framing exercise would be necessary and of value. The scope of the
EQIA
reflects the size and effect of the Bill.

The sources of information and evidence drawn on by the Scottish
Government in carrying out the
EQIA
include:

The public consultation ("Expenses and Funding of Civil
Litigation Bill: A Consultation")
[3] on the proposals to be included in the Bill
[4];

The analysis of responses to that Consultation ("Expenses and
Funding of Civil Litigation Bill: Analysis of Consultation")
[5];

Evidence was also collected from statistics and other
information provided by the Scottish Government and justice
partners as well as through engagement with stakeholders.

The consultation

The Government's consultation paper set out in detail the
proposed changes to be taken forward in this Bill. The consultation
included questions on impact and equality and was sent to equality
and consumer groups as well as to those representing the legal
profession. Responses to these questions were used to inform the
EQIA. Of
those that responded, no concerns were raised about the impact of
proposals on specific protected groups. We therefore tentatively
concluded that there is an absence of concern regarding the impact
of the proposals on those groups.

Given that the proposals in the Bill appeared to have no
significant direct effect in relation to the protected
characteristics, the Scottish Government's focus in carrying out
the
EQIA was to
examine the available evidence to attempt to determine whether
there may be any indirect effects on the protected characteristics,
by analysing where possible the groups likely to be affected by the
Bill's provisions. The public equality duties - to eliminate
unlawful discrimination; to advance equality of opportunity; and to
foster good relations - were also considered as part of the
EQIA.

The Equalities and Human Rights Commission (
EHRC)
focussed on their equality mandate and human rights issues which in
particular affect groups protected under equality legislation.
Their response set out their views on these issues but did not
respond to the specified questions in the consultation paper or go
into detail about the effects from the point of view of the
different protected groups. The
EHRC noted
that "even if people [with discrimination and human rights claims]
could otherwise fund their own representation through speculative
fee agreements, they often cannot afford the risk of paying the
other side's costs". The Commission would "accordingly support the
proposals for Qualified One-way Costs Shifting (
QOCS)"
though it noted that the proposals only applied to personal injury
cases.

Independent Living in Scotland (
ILiS)
also welcomed the proposal for the introduction of
QOCS.
ILiS
stated that "the principle that 'funds follow success' can put
people off fighting their case as they know they will be
responsible for costs incurred by the other party. We therefore
believe that introducing a system of qualified one-way costs
shifting would increase access to justice for disabled people".

The
EHRC was in
favour of the proposed introduction of sliding caps. It stated that
"a cap on speculative fee agreements in personal injury and other
civil actions would be welcomed as a protection against the
potential scope for excessive charging".

The
EHRC
expressed its reservations about damages based agreements (
DBAs). It noted
that "in discrimination and human rights claims, damages are
usually relatively low" and
DBAs may not be
viable as a means of funding such cases. The Commission's view was
that damages are "awarded to reflect the injury to the pursuer and
compensate the pursuer for the harm done". The Commission therefore
considered it "unreasonable for an element of that sum to be taken
from the pursuer to meet the solicitor's fee".

We have noted this reservation but as
DBAs will be
voluntary and other funding options are still available (including
speculative fee agreements and, if the applicant qualifies, legal
aid) we consider the proposal to introduce solicitor
DBAs to be
proportionate.

The Senators of the College of Justice stated in their
consultation response: "There may be benefits arising from class
actions [Group Proceedings] for people who share a protected
characteristic." Both the
EHRC and
ILiS also
welcomed the proposal to introduce group proceedings. The
EHRC stated:
"Class actions would improve access to justice in Scotland,
providing an important opportunity for members of the affected
group who would otherwise be denied an effective remedy. This would
include group members who may for a reason related to their
disability,
e.g. due to communication
difficulties, be less able to initiate and pursue their claims
under the existing court procedures."

Scottish Women's Aid was concerned that the proposal in the
consultation that legal aid be the 'funder of last resort' may
negatively impact on women experiencing domestic abuse. The
Scottish Government has not included that provision in the Bill and
consequently those concerns about a negative impact will not
arise.

Key findings

Having considered the data and evidence gathered, the potential
impacts - negative and positive - were considered that the
proposals might have on each of the protected characteristics.

There are very few relevant available statistics on the
protected characteristics in relation to civil justice. Civil
Justice Statistics in Scotland 2015-16
[9] gives a breakdown of the civil court actions by type of case
but neither the Scottish Government nor the Scottish Courts and
Tribunals Service collect specific information relating to the
protected characteristics of people who make use of the civil
courts, other than age. The Scottish Crime and Justice Survey 2014
[10] does contain some information on the protected characteristics
of people experiencing civil law problems, though not all such
problems will be resolved in court.

NB: There is no specific
relevant civil justice information available in relation to
pregnancy and maternity, religion or belief, sexual orientation or
gender reassignment. The Scottish Government Equality
Outcomes: Lesbian, Gay, Bisexual and Transgender Evidence Review
found that "Regarding access to justice and legal aid, no
information has been found on the sexual orientation of applicants
for civil or criminal legal aid."
[11]

Age

Positive

Negative

None

Reasons for decision

Eliminating unlawful discrimination, harassment and
victimisation

X

The Civil Justice Statistics in Scotland 2015-16
[12] show that 56% of personal injury claims arise out of
road traffic accidents. These statistics
[13] provide a breakdown by age of those killed or suffering
serious injury and indicate that those aged between 16 and 59
(76%) are most likely to raise a claim relating to personal
injury arising from a road traffic accident.

The Scottish Crime and Justice Survey 2014
[14] found that 21% of adults had experienced at least one
civil law problem in the last three years. People aged over
60 are less likely to have experienced civil legal problems
in the last three years than those in other age brackets (11%
of those aged over 60, compared to 18% of those aged 16-24,
29% of those aged 25-44, and 24% of those aged 45-59).

The statistics available suggest that the Bill's
provisions which improve access to justice by opening up
funding options and making the expenses in civil litigation
more predictable will be most relevant to people in the
economically active age bracket, who appear to be more likely
to be users of the civil courts. However, the Scottish
Government considers the Bill to be neutral in respect of
this protected status as pursuers of all ages will benefit
from the Bill's provisions.

Advancing equality of opportunity

X

Promoting good relations among and between different
age groups

X

Disability

Positive

Negative

None

Reasons for decision

Eliminating unlawful discrimination, harassment and
victimisation

X

Independent Living in Scotland's view is that the Bill's
provisions for qualified one-way costs shifting will increase
access to justice for disabled people. The Equalities and
Human Rights Commission also stated that the Bill's
provisions (in relation to group proceedings) may be of
particular benefit to people with a disability.

The Scottish Crime and Justice Survey 2014-15
[15] found that the prevalence of civil legal problems is
higher for people with a disability at 30% as opposed to 19%
in the general population. In addition, only 39% of people
with a disability had solved their problems whereas 52%
without a disability had succeeded in resolving their
problems.

The higher prevalence of civil law problems for people
with a disability may also mean that they are more likely to
be users of the civil courts than others, including in
relation to personal injury. If that is the case then the
Bill's provisions which improve access to justice by opening
up funding options and making the expenses in civil
litigation more predictable may be more relevant to this
group, though the Scottish Government considers the Bill to
be broadly neutral in respect of this protected status as
others will also benefit from the Bill's provisions.

Advancing equality of opportunity

X

Promoting good relations among and between disabled
and able bodied people

X

Gender

Positive

Negative

None

Reasons for decision

Eliminating unlawful discrimination

X

The majority (56%) of personal injury actions relate to
road traffic accidents
[16]. The Transport Scotland Report "Key Reported Road
Casualties in Scotland 2015"
[17] indicates that 56% of those involved in accidents
resulting in death or serious injury were men.

This may mean that men are slightly more likely to be
users of the civil courts in relation to personal injury. If
that is the case more men may benefit from the Bill's
provisions which improve access to justice by opening up
funding options and making the expenses in civil litigation
more predictable. However, this potential effect is marginal
and the Scottish Government considers the Bill to be neutral
in respect of this protected characteristic as it does not
discriminate against those bringing civil actions on the
basis of gender.

Advancing equality of opportunity

X

Promoting good relations between men and
women

X

Race

Positive

Negative

None

Reasons for decision

Eliminating unlawful discrimination

X

The Scottish Government's "The Experience of Civil Law
Problems in Scotland 1997-2004"
[18] found that 1 in 3 people from a minority ethnic group
experienced civil law problems over a five year period
compared to 1 in 4 for the general population.

The higher prevalence of civil law problems for people
from a minority ethnic group may mean that they are more
likely to be users of the civil courts than others. If that
is the case then the Bill's provisions which improve access
to justice by opening up funding options and making the
expenses in civil litigation more predictable will be more
relevant for this group. However, the Scottish Government
considers the Bill to be neutral in respect of this protected
status as people from all ethnic groups will benefit from the
Bill's provisions.

Advancing equality of opportunity

X

Promoting good race relations

X

Recommendations and conclusion

The overall purpose of the Civil Litigation (Expenses and Group
Proceedings) (Scotland) Bill is to implement Sheriff Principal
Taylor's and Lord Gill's recommendations to make the civil justice
system more affordable, more predictable, and thus, more
accessible.

The impact of the Bill is broadly neutral in relation to the
protected characteristics, though consultation responses indicate
that it will have a positive impact in relation to people with a
disability. There may also be a positive impact on other protected
groups if it is reasonable to assume that they will almost always
be pursuers in civil actions as the legislation is intended to:

make it easier to obtain funding for civil litigation for
those who do not qualify for legal aid as the funding options are
widened;

introduce sliding caps on success fees so that a greater
portion of the damages awarded reaches those for whom those
damages are intended; and

introduce group proceedings and allow third party
representation which will especially assist those who are more
vulnerable to bring a civil court action.

The Scottish Government has not made any changes to the policy
in the Bill as a result of the
EQIA, as
the proposals in the Bill are intended to apply equally to all
affected, and appear to have some positive and no significant
differential effect on the basis of the protected
characteristics.